When Litigation is Necessary
A good, experienced family law attorney understands – and advises his clients – that the courthouse is the emergency room of the legal system. There are many ways to resolve issues that are much better for the “patients,” the clients, than going up against their spouse in front of a judge.
The disadvantages of litigation include the cost and uncertainty of the process. Just like the ER, litigation is incredibly expensive – from a couple thousand to hundreds of thousands of dollars. The outcome of litigation is also generally unpredictable. Although there are many anecdotes about what a particular judge might do in a specific fact situation, the law related to divorce and children gives judges a great deal of leeway, and judges don’t hesitate to use that freedom to help a sympathetic litigant or punish an unsympathetic one.
In fact, there is no published information about the policies or tendencies of trial court judges in Texas, so no attorney can really predict what a judge will do with a certain set of facts. There is also the judge’s personal bias to consider; their views and perceptions are influenced by their life experience, the way they feel that day, and other factors. And while both sides have the same amount of time to present their case, complex and sometimes arcane rules of evidence and procedure create barriers to tell the whole story in a smooth, simple manner to the judge. This makes certain cases difficult to understand, especially if a disagreement has been going on for years.
On top of all that, the law is not always “fair.” Although legislation tweaks it to improve outcomes for future cases, the law could never encompass every scenario and fact. And where the law is clear, judges are required to follow it – even if they believe it creates an unfair outcome.
It might be preferable to stay in the doctor’s office when getting treatment for an ailment, but no one can deny the importance of the emergency room when it’s needed. The same concept applies to the courtroom and the judge. While you might want to stay in mediation or use collaborative law to come to a suitable solution, there are certain situations where a court is needed.
Some situations that likely require litigation include:
- Where serious family violence has occurred and is an ongoing threat;>
- Where significant mental health (or addiction) issues make it impossible for one or more parties to make rational decisions in a settlement process;
- Where the physical or emotional safety of a child is at risk for some reason; or
- Where one party refuses to provide necessary, relevant information (such as financial) to the other party.
Less obvious situations where parties must resort to litigation include:
- Where the parents simply cannot agree on a parenting plan;>
- Where one party won’t compromise on some issue that is too important for the other party to give up;
- Where a party will not take the advice of their attorney and/or mediator;
- Where one party’s expectations are far out of line with the most likely legal outcome;
- Where one party ignores the rules of the Court or the process they are using for settlement;
- Where one party prevents the other from having access to funds to pay expenses and/or attorney fees during the divorce process; or
- Where one party is continually alienating the children from the other parent.
When it becomes clear that some other settlement process – such as “kitchen table” negotiations, mediation, lawyer-lawyer negotiation, and collaborative divorce – will not work, it’s time to call incompetent litigation counsel. Because family law, rules of evidence, and litigation procedures are complex, and because litigation moves quickly and requires prompt decisions, you’ll lose some control over your situation once you begin. You will make your goals clear and then turn most aspects of your divorce over to an attorney. Your counsel will make best-case decisions for you to minimize the emotional trauma of the process and will act with your best interest in mind. This can be a difficult concept for clients who like to have control or don’t trust their chosen representation.
The bottom line is that courts are there to make decisions for those who can’t otherwise do so – and they can be helpful in many cases. However, because of the extreme financial and emotional cost of litigation, you should consider all angles of the decision to pursue this legal process. If you do choose to resolve your divorce through litigation, understand its pitfalls and damages to those involved.